There have been three disputed issues in the Sussexes' epic privacy claim against the Mail on Sunday so far which have gone before a judge. All of which have been widely reported, as is inevitable, in what is likely to be the first legal action that will go to trial in which a member of the royal family is both a party and witness – who will therefore be subjected to cross-examination by a barrister who bears the title of “Queen’s Counsel”.

Hard fought litigation – especially against the press – often comprises a series of skirmishes before the set-piece battle in the form of the trial. Sometimes these skirmishes are of modest significance to the eventual outcome of the legal action. Sometimes they are of considerable importance and may have a significant impact on who is likely to win the trial. However, for an individual client engaged in a David and Goliath battle with a newspaper group, losing out in these early encounters can be hugely discouraging and expensive.

The Duchess of Sussex has won one battle over the identity of five of her friends who the Mail on Sunday accused of being informal media agents for her.  It is however by no means clear that she will be able to hold on to the anonymity of these five friends up to the conclusion of the trial. It would be almost unprecedented in a civil trial for a judge to make such an order, the courts being determined so far as possible for justice to be administered in the full glare of public gaze.

The Duchess of Sussex has however lost the other two battles, at considerable financial and PR cost. The outcome of these is unlikely to change the outcome of the trial. But with litigation being very much a battle fought in the mind, to have so publicly lost out against in the Mail on Sunday must have been bitter blows to the Sussexes.

If you take on any newspaper – especially a tabloid – and it knows that it has a weak defence, you will usually be confronted by a series of obstacles dreamed up by their lawyers designed to out-cost and wear down the claimant. Newspapers almost invariably ensure that they hire legal representatives who are prepared to adopt these tactics even where the newspaper is plainly in the wrong.

Such tactics will involve endless arguments over relative trivia, which are best to avoid if possible. Better to concentrate on getting to the trial as quickly and inexpensively as possible. It appears that this methodology may not have been adopted by the lawyers acting for the Duchess of Sussex, which has had the effect of her suffering humiliating and expensive defeats at the hands of the Mail on Sunday.

These defeats have been latched on to by fellow serial privacy offenders the Sun as part of the general policy of the lower end of Fleet St. It places anyone who has the temerity to take them on in the stocks and invite the public to throw rotten fruit at them in the form of poisonous online comments and social media scorn.

The “tabloids” win the first two rounds of their epic battle with the Sussexes – Part Two: “Bells and Whistles”

There are two key documents that kick off the legal process. The first is the Claim Form, which used to be called a Writ. This is essentially your ticket into the legal process, and for which you have to pay a fee. It sets out the nature of the claim in only the briefest terms. Full details of the claim are set out in a more substantial document called the Claim Form, the content of which is governed by a set of obligations set out in the Civil Procedure Rules. This document is drafted by the barrister acting for the claimant.

A common tactic for an unconfident defendant is to mount a technical attack on the Claim Form by claiming that it breaches the CPR. For this kind of exercise, you should use the brainiest barrister you can find. In this case, the MoS used Antony White QC, who I know from my experience of instructing him is both breathtakingly clever and expensive – the two go together in the legal world. His attack was forensic and appears to have won over the senior media list judge (Mr Justice Warby) with ease.. 

The primary responsibility both for the flawed Particulars of Claim and the subsequent ill-judged decision to try to defend those parts of it which the MoS wanted to strike out, lies with Meghan Markle’s doyen celebrity barrister – David Sherborne, though her solicitors (my old firm Schillings) must also bear their share of the blame. David had spiced up the Particulars of Claim with “bells and whistles” elements which fell foul of the Civil Procedure Rules.

Mr Justice Warby struck out certain parts of the Duchess’s claim against the publisher which included allegations that the MoS acted “dishonestly” by leaving out certain passages of the letter she sent to her father, which is the subject-matter of the claim. The judge also struck out allegations that the publisher deliberately “stirred up” issues between Meghan and her father, and that it had an “agenda” of publishing intrusive or offensive stories about her.

On top of the £67,000 she had to pay to the MoS as the price of losing this hearing, there will have been her own bill from the eye-wateringly expensive Schillings, along with David Sherborne who appears to have been a casualty of the defeat, losing his place to the rather more heavyweight Justin Rushbrooke QC, who I have both instructed and opposed and who will fight the Sussexes corner hard. He would have been a better choice in my view to put up against Antony White.

This much-publicised defeat was a self-inflicted wound because it was unnecessary. The struck-out elements did not need to be in the Particulars of Claim; they could be set out in the evidence and/or made part of the arguments at trial. Meghan Markle’s lawyers were offered a deal whereby the peripheral offending sections of the Particulars of Claim could be excised without a hearing and with no cost consequences, an offer which they unwisely declined.

The “tabloids” win the first two rounds of their epic battle with the Sussexes – Part Three: “Finding Freedom”
The Mail on Sunday recently sought to amend its defence in light of the notorious book about Meghan and Harry that was published last month. It claimed that Markle had a strategy of “using her friends as...PR agents” to “influence the media” in the months before she sent the letter to her father. Also, that it “contains a great deal of detailed information about [Meghan’s] personal life, including... passages referring to her relationship...with her father, and a section referring to the letter...at the heart of this case”; and that the book appeared to have been written with Meghan and Harry’s “extensive cooperation.” This is part of their general defence that the publication by the paper of Meghan Markle's letter to her father was justified because she had pursued a strategy of disseminating private information about herself via various third-party sources.

In reply, Meghan Markle's lawyers claimed the book ("Finding Freedom") was a composite of material lifted from other published sources and journalist invention. As an example, they said the book detailed the Duchess’s ‘hygiene and bathroom routines’ on a joint holiday at a safari camp in Botswana. But it seems however that only the Duke had ever visited the camp, and that there were many other erroneous claims in the book.

The judge said; "[Meghan] says she had nothing to do with the information in the public domain, either directly or indirectly. She says 'it's nothing to do with me', which is a simple case... If it's a house of cards, then it will quickly fall down at trial. But I'm satisfied the amendments are arguable."

The defeat is not a great significance - apart from the horrendous cost consequences - because the bar is set low for merely getting material into a case. All that is required is that the new element to the defence is "arguable". But the Duchess of Sussex was ordered to pay the newspaper's costs of £39,000 on top of her legal costs for the pre-trial hearing which were a staggering £140,000.

On top of the defeat that the Duchess of Sussex suffered over her Particulars of Claim (see Part Two of this article), it has meant that her claim has already cost her around £350,000 in hearing costs alone. Her claim has also started to look more brittle than it should have.

In light of the evidence of the author who is unequivocal that Meghan Markle played no part in the book, this looks like just another attritional tactic by the paper. The MoS cites "The 49 details in Finding Freedom that could have only come from Meghan Markle". It should be evident to the trial judge, and that without some form of corroboration that these “details” are more than journalistic speculation, this is nonsense. These alleged "details" only begin to constitute evidence of complicity on the part of the Sussexes if they are actually true.

Many years ago I was conducting another immensely high-profile breach of privacy claim behalf of the Duchess of York for whom I obtained a very early emergency “super injunction” long before the phrase had been coined. A publisher was about to release a book written about her much-publicised affair with her financial adviser, John Bryan. The author of the book was, however, bound by their NDA.

At a subsequent hearing at which the publisher was seeking to set the injunction aside, its QC spent over an hour reading out to the judge newspaper extracts which he said showed that most of the material in the book was already in the public domain. My QC pointed out that the publisher offered no evidence to the judge that any of this alleged detail about the Duchess of York was true; a submission that the judge accepted. So we held on to our “super injunction”.

Article written by Jonathan Coad, Coad Law